IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100013713 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings and rank.

2.  The applicant states:

a. during a psychological screening of unit personnel while serving in Iraq, a
psychologist told him to seek mental health upon his return to the states;

b. upon his return to the states, the battalion doctor diagnosed him with
combat-related stress, also known as post traumatic stress disorder (PTSD), and referred him to a civilian doctor whom he saw until his discharge from the Army;

c. he had other medical problems which caused him to be discharged from
the Army; however, the doctors kept his mental health record out of the MEB packet in order to save the Army money and discharge him with a lesser disability;

d. every day is a constant struggle and his disability cost him a divorce from
his wife, countless jobs, friends, family, and legal trouble;

e. although he was supposed to be separated in the rank of corporal
(CPL/E-4), he was medically discharged in the rank of private (PV2/E-2);

f. he was treated like an outcast, ridiculed for having medical problems, and 
given an Article 15 for failing to show at one formation; and 
g. he was not counseled for the infraction or ever had any negative
counseling in his record.

3.  The applicant provides:

* two self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Disability Rating Decision
* Enlisted Record Brief (ERB) dated 9 February 2005
* Discharge order
* MEB/PEB proceedings
* Medical record document extracts
* VA Doctor’s statement

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army on      15 February 2002.  He was trained in, awarded, and served in military occupational 19K (Armor Crewman).

3.  His record shows he served in support of Operation Iraqi Freedom (OIF) from 10 September 2002 through 11 August 2003.

4.  The applicant’s Official Military Personnel File (OMPF) includes a narrative summary (NARSUM) by Winn Army Medical Center (WAMC), Fort Stewart, Georgia, that was prepared for an MEB that documents his 15 November 2004 medical examination.  It shows:

a. the applicant’s chief complaint was his shoulder pain that occurred after
performing physical training in Kuwait in January 2003 and dislocating his right shoulder during a handstand in June 2004;
b. he also complained of right elbow pain and paresthesia down into the right
finger; and

c. he was diagnosed with “chronic right shoulder pain with instability and
recurrent dislocations” and “chronic right elbow pain with ulnar subluxation”

5.  On 24 January 2005, the applicant was diagnosed by the MEB for “chronic right shoulder pain with instability and recurrent dislocations” and “chronic right elbow pain with ulnar subluxation.”  The MEB recommended referral to a PEB.  The applicant was informed and agreed with the findings and recommendations of the MEB on 2 February 2005.

6.  On 14 February 2005, an informal PEB at Fort Sam Houston, Texas, found the applicant to be unfit for further service due to chronic right shoulder pain with instability and recurrent dislocations and chronic right elbow pain with ulnar subluxation under VA Schedule Rating for Disabilities (VASRD) codes 5009 and 5003.  The PEB recommended the applicant be separated with severance pay with a rating of 20 percent.

7.  On 16 February 2005, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

8.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for PTSD or any other disabling or disqualifying (unfitting) mental condition prior to his discharge.

9.  The applicant’s OMPF includes an ERB prepared on 28 February 2005.  It shows he was promoted to the rank of specialist (SPC/E-4) or CPL on 1 December 2003.  It also shows that was reduced to private first class 
(PFC/E-3) on 19 July 2004 and to private (PV2/E-2) on 20 January 2005.

10.  Headquarters, Fort Stewart and Hunter Army Airfield, Orders 069-0003, dated 10 March 2005, directed the applicant’s discharge from active duty on 10 April 2005 with a 20-percent disability rating and the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay in the rank of PV2 after completing a total of 3 years, 1 month, and 26 days of creditable military service.

11.  During the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  It stated:
a. the applicant was properly rated at 20 percent based on chronic right
shoulder pain with instability and recurrent dislocations, and chronic right elbow pain with ulnar subluxation;

b. a DA Form 2807-1 (Report of Medical History) completed by the applicant 
on 26 October 2004, shows he indicated he had anxiety attacks as a result of chest pains in the past and he saw Dr. Kirby in August 2003 for this condition;

	c.  the applicant denied any memory, sleeping, or depressive problems and indicated he was not undergoing any evaluation for any mental conditions;

d.  a review of all the available military evidence and the disability case
file indicated the applicant did not have an active mental diagnosis from the military; was not undergoing military counseling or therapy for an active mental condition; and did not have a mental condition that caused him to be unable to perform his assigned military duties; and

e.  recommended the ABCMR determine the applicant’s appropriate rank at
time of REFRAD and deny his request to include a diagnosis of PTSD in the MEB/PEB process.

12.  The applicant was provided a copy of the USAPDA advisory opinion on 5 January 2011.  It appears he submitted one of the same self-authored statements initially included with his application when it was received by the Board and previously referenced above under “The applicant states.”  It does not respond to the advisory opinion.

13.  The applicant provides a DD Form 2161 (Referral for Civilian Medical Care). It shows it was prepared as a result of the applicant’s request for a combat stress evaluation.

14.  The applicant provides a VA Disability Rating dated 5 November 2009, that shows he was granted service-connected disability compensation for PTSD with major depressive disorder (30 percent).  It also shows he was denied service connection for bipolar disorder.

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

16.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

17.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.

18.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.

19.  Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4), states in effect, that the active duty grade of rank and pay grade at the time of separation will be entered in Item 4a and 4b on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his PTSD condition should have been evaluated by the MEB and PEB and he should have been separated in the rank of CPL.

2.  There is no evidence suggesting the applicant was suffering from a disqualifying mental or medical condition at the time of discharge that would have supported an inclusion of any such condition in the evaluation process during his separation processing through medical channels.

3.  By regulation, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

4.  The evidence of record confirms that a PEB, after examining all the medical evidence, determined that the applicant’s chronic right shoulder pain with instability and recurrent dislocations and chronic right elbow pain with ulnar subluxation, made him unfit for further service and recommended his separation with severance pay based on a 20-percent disability rating.

5.  The record further confirms the applicant concurred with the findings and recommendations of the MEB/ PEB and there is no indication that he attempted to have those findings changed while he remained on active duty.  As a result, it is concluded that the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

6.  The PEB findings and recommendations, to include the assigned disability rating, were based on a comprehensive medical evaluation of his disabling medical conditions by competent medical authorities through the PDES process. 
A subsequent change or worsening of those conditions or any other conditions that he may now be suffering from, would not call into question the validity of the disability ratings that were assigned during the PEB process and there is absolutely no evidence suggesting the PEB findings and recommendations were arbitrary or capricious.

7.  Notwithstanding the applicant's treatment for any other medical conditions during his active duty tenure, there are no medical records that indicate any of the other conditions were unfitting or that he suffered from an unfitting PTSD or any other disqualifying mental condition at the time of his PDES processing.  The existence of other service-connected conditions that were not considered disabling during the PEB process does not warrant changing the disability rating assigned by the PEB which was based solely on the disabling unfitting medical conditions evaluated.
8.  The evidence of record also confirms the applicant is properly receiving treatment with the VA which is the appropriate agency to render long term care and disability evaluation for service-connected medical conditions.  The VA can evaluate him throughout his lifetime and adjust his disability rating accordingly.

9.  The evidence of record further confirms the applicant was last reduced to the rank of PV2 on 20 January 2005.  This was the rank he held on the date of his separation as evidenced by his ERB.  As a result there is no basis upon which to change to the applicant’s record or DD Form 214 to show he held the rank of CPL on his separation date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X___  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________X_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20100013713





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ABCMR Record of Proceedings (cont)                                         AR20100013713



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